SAB and NRDC - [2010] WASAT 130

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SAB and NRDC [2010] WASAT 130

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
MR J MANSVELD (MEMBER)

HEARD: 20 AUGUST 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: GAA 2434 of 2010

BETWEEN: SAB
Applicant
AND
NRDC
Represented person

Catchwords:

Guardianship - Urgent need for treatment decisions to be made - Previously expressed wishes of represented person - Whether too much weight might be given to perception of previously expressed wishes

Legislation:

Guardianship and Adminstration Act 1990 (WA), s 51, s 110ZD, s 110ZD(2)(b), s 110ZD(3)(b)

Result:

Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Applicant: Self represented
Represented person : N/A

Solicitors:

Applicant: Self-represented
Represented person : N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

SAB made an application to be appointed guardian and administrator for NRDC, who had recently suffered a severe stroke. The Tribunal heard the application for the appointment of a guardian on an urgent basis because there was conflict between NRDC's friends and family on the one hand, and the treatment team on the other, about whether or not he should receive urgent medical treatment to sustain his life. There was difficulty feeding NRDC, and the medical practitioners treating him considered that there was a likelihood that if NRDC did not have a PEG tube inserted for feeding, he was likely to die within a short time. SAB held the view that NRDC, if capable of making a decision, would have declined treatment, and that his wishes in that regard should be respected.
At the hearing, NRDC's brother MC, sought to be appointed NRDC's limited guardian to make treatment decisions for him, in preference to SAB. He shared SAB's views as to NRDC's likely wishes in relation to treatment.
The Tribunal was called upon to make an urgent decision as to NRDC's capacity, the need for appointment of a guardian to make decisions on his behalf, who should be appointed, and what decisionmaking functions should be invested in the guardian. The Tribunal gave oral reasons for its decision and appointed the Public Advocate limited guardian for NRDC with authority to consent to any treatment or health care for him, and to decide where and with whom he should live, whether permanently or temporarily.
The Tribunal was concerned that either SAB or MC, in making immediate decisions about NRDC's medical treatment, might give too much weight to comments made by NRDC in the past about his wish not to be bedridden in a nursing home .
The Tribunal's oral reasons with minor editing follow.

The decision

This application is brought by SAB for her appointment as a guardian of NRDC. The Tribunal has this morning heard from SAB, as well as from NRDC's treating doctor; a social worker who has had some involvement with the family prior to NRDC's stroke and with SAB; Ms P, a registered nurse and ACAT assessor; a speech pathologist who has had the care of NRDC; and MS, who is SAB's mother; GC, a nephew of NRDC; and MC, the brother of NRDC, who puts himself forward as an alternative appointee as guardian of his brother NRDC.
We have also heard from the representative of the Public Advocate's office, and the person, who would be the Public Advocate's delegate, if the Public Advocate were to be appointed guardian. Also this afternoon we have heard from the Public Advocate, whom we are grateful came at the Tribunal's request to explain the approach which she would take as guardian if she were to be appointed.
All of that evidence, I might say, has been helpful, and I am grateful for the sincere and constructive way that everyone has participated in giving assistance to the Tribunal to come to what it considers to be the right decision in what is a difficult situation for all involved, with a great deal of emotional overlay.
When the Tribunal makes a decision in relation to guardianship, there are a number of principles which it is obliged to take into account, or to apply, as set out in the Guardianship and Administration Act 1990 (WA) (GA Act). The primary concern, as I said at the outset of the hearing, is that any orders made by the Tribunal must be in the best interests of the person concerned.
There is a presumption that every person is capable of looking after their own health and safety and making reasonable decisions and judgments in relation to their person. We are also mindful of the principle that a guardianship order cannot be made if there is an alternative means of meeting a person's need that is less restrictive of their freedom of decision and action. When we make an order, we have to make one which imposes the least restrictions on a person's freedom of decision and action. And we must, to the extent that it is possible, ascertain the views and wishes of the person concerned.
In applying those principles, we have the jurisdiction to appoint somebody as the guardian where we find that the person is incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person, or is in need of oversight, care and control in the interests of his or her own health and safety, or for the protection of others. We must then be satisfied that there is a need for the appointment of a guardian.
So turning to those different aspects and working through them, in relation to the question about whether or not NRDC is capable of looking after his own health and safety, we are satisfied that he has the relevant incapacity. We have heard this morning that NRDC suffered a severe stroke and was admitted to hospital on 6 July 2010, and has been in hospital ever since.
He suffered hemiplegia and aphasia, both receptively and expressively, and he has initially spent several weeks in a fairly drowsy state, although more recently his degree of alertness has improved, and there is now some suggestion of communication by nodding or shaking of his head, although we note SAB's evidence that she has been able to communicate with him since fairly early in the period of his hospitalisation.
We have heard evidence, or a report from the Public Advocate's representative that she spoke to Dr G, a consultant who has been responsible for NRDC's care. And we were told that he said that NRDC suffers major receptive aphasia, so that in his view, the reliability of responses to communication with him is in serious doubt. We have heard, and take into account, the evidence of a number of those people I mentioned earlier who have had contact with NRDC during the period of his hospitalisation.
In addition we have received some communications, including one from JT, a long time friend of NRDC, who explained that he had seen NRDC in hospital on 9 August 2010 and several days after that, and his evidence contained in that document is largely consistent with what we heard from others, namely that there is a fair degree of uncertainty, I think - if I can generalise the evidence - as to the extent to which NRDC understands and responds to communications from those around him.
Overall we are satisfied that the uncertainty is at a level where we're able to say that he does not have the capacity to look after his own health and safety. And for the same reasons, really, and based on the same evidence, we find the second requirement in relation to the appointment of the guardian - namely, that he is unable to make reasonable judgments in relation to his person - to be made out on the basis of that evidence.
Having reached that point of a finding of incapacity, the next thing, as I mentioned earlier, is whether or not there is a need for a guardian. We have concluded that there is the need for an appointment to be made. It is clear that there are treatment decisions which will, or may need to be made in the very near future, and in particular, the insertion of a PEG tube for feeding purposes.
It is apparent from the evidence that a decision one way or the other will need to be made very shortly, and probably after this coming weekend, when the apparently improved intake of nutrition by NRDC can be considered, and when it is known whether or not that improved intake continues. A decision can be made in the light of the progress as it occurs over the next few days, but the decision cannot be left for much longer.
So there is a need for decisions to be made. There is some uncertainty as to whether the decisionmaking hierarchy, under s 110ZD of the GA Act is adequate for the purposes of those decisions. That uncertainty arises because of some questions as to where particular individuals fall within the categories of people listed in s 110ZD, and in particular, the relative claims to decisionmaking capacity under that section of SAB as against MC.
MC said that, as NRDC's nearest relative, he should have the responsibility for decisionmaking on NRDC's behalf. The requirement for a nearest relative to exercise decisionmaking power under S 110ZD is that the relative must 'maintain a close personal relationship' (s 110ZD(3)(b)), and must be reasonably available (s 110ZD(2)(b)). Questions arose at the hearing as to whether MC satisfied those requirements. SAB would appear to satisfy the requirement of S 110ZD(3)(b) as a person who maintains a close personal relationship with NRDC, but is lower in the order of priority than MC would be if he satisfied the necessary requirements. Uncertainty as to how s 110ZD might be applied by the treating medical professionals in this case, points to a need for the appointment of a guardian.
In addition, although there was some clear initial agreement between the family members and SAB as to the way forward in a meeting in early July - there is some level of disagreement between SAB and the family members about who is the appropriate decision-maker, and we think that in the circumstances that points to the need for clarity as to who should be appointed and who should have responsibility in relation to treatment decisions.
We will deal in due course with the particular functions in respect of which that need exists. As I said earlier, we need to consider, in applying the legislation, whether there is a less restrictive alternative to the appointment of a guardian.
We have concluded that there is not a less restrictive alternative, and the reason for that is based upon the uncertainty as to whether the alternative, less restrictive means, namely the utilisation of s 110ZD and the decision-making hierarchy in that section, would adequately cover the situation. Given that uncertainty, we do not think that that is an appropriate mechanism to rely upon, and so there is no less restrictive alternative available or appropriate.
We do not consider that there is a necessity for an appointment of a plenary guardian in all the circumstances. It is clear, in NRDC's present situation, that decisions that need to be made in the foreseeable future are decisions in relation to treatment, and decisions, perhaps, in relation to accommodation and questions of where NRDC might live in the longer term on his discharge from hospital. And that is the extent to which we consider there to be a need for the appointment of a guardian.
Those matters are really all fairly uncontroversial, and are largely the subject of common views of everybody from whom we have heard today. The more difficult question with which we are confronted is who should be appointed. There are three possibilities, as I think I have mentioned. There is the applicant, SAB; there is MC, the older brother of NRDC; and the other alternative is the Public Advocate. I suppose a fourth alternative would be a joint appointment of SAB and MC together.
A guardian, once appointed, has a requirement to act in the best interests of the represented person, and the Act requires the Tribunal, in choosing who is to act, to appoint somebody who will act in the best interests of the person in respect of whom the application is made. I want to say very clearly that I have no doubt that everyone we have heard from today is very well-motivated, and has NRDC's best interests firmly at heart. And there is a shared concern to do the right thing by him, which is extremely commendable.
Both SAB and MC have indicated a very strong view, which we well understand, and, to a point, share, that NRDC's often expressed wishes in relation to not finishing his life in a nursing home in a bedridden situation should be honoured. We accept the evidence that we have heard, which has been very consistent from a number of different sources, that NRDC has expressed a desire that he not lead a life bedridden in a nursing home to end his days, which have obviously been active and energetic.
That is a factor which is relevant to decisions that need to be made in relation to his treatment and his ultimate care. It is not, however, the only factor that needs to be taken into account. We do consider that the evidence we have heard leads us to the conclusion that both SAB and MC will be heavily influenced to the point where acting on what they perceive to be NRDC's wishes would be the driving factor in the decisionmaking process and that perception will determine the decision that is made.
As I have said, whilst that is a factor to be considered, it is not the only factor. As Ms P observed just as we concluded the evidentiary part of the hearing this afternoon, how people approach a decision about how they might die when the decision actually has to be made, may involve questions of fear or other considerations. Those considerations may affect the decision that the person makes so that it differs from what they may have thought they would do when they were not confronted with the immediate consequences of the decision. We have a concern based on the evidence we have heard today that either SAB or MC may equate NRDC's wish that he not live out his life in a nursing home in a bedridden state with a wish to avoid that prospect by effectively starving himself to death.
We have heard evidence this morning, and we accept, that everybody who told us of their exchanges with NRDC did so as accurately, honestly and openly as possible. There were several suggestions that NRDC had given an indication to different people in response to questions from them, that he didn't want to die at this stage. And the reply of SAB and MS to NRDC's response was, "Well, you will have to eat more." We noted, as they both noted, that subsequently he did begin to eat more and has, we are told this morning, taken the fluids offered him and eaten them or consumed them entirely.
That response tends to suggest that NRDC may not wish to die by not taking in nutrition even though he may perceive that he faces a future of permanent immobility. So it seems from the evidence we have heard that to the extent that he might be capable of choosing whether or not he wishes to eat and to avoid death by eating, he has chosen to take food.
In those circumstances, we do not consider that treatment decisions should be made simply on the basis of the previously expressed wish not to live a bedridden life and not to end life in a nursing home.
We have heard this afternoon from the Public Advocate about the approach which would be taken by her if appointed. That is to wait and see what would happen over the next few days, to have the delegate then attend and speak to NRDC or at least to observe him in hospital, to make an assessment, and to talk to all of the relevant people there. We think that is a very important step to be taken. We think it is important that, to the extent possible, the situation and the wishes of NRDC be ascertained.
Then, a decision will be made in the light of all of the information, including how he has progressed. Clearly, as the Public Advocate indicated, one of the factors which will be taken into account in that consideration is the previously expressed wishes and the information in that regard that is obtained from those who are close to NRDC. We think that is the appropriate course. And we have a concern that the overemphasis in the decisionmaking process on the perception of previously expressed wishes is not in the best interests of NRDC. We consider that decisions by either SAB or MC may suffer from that overemphasis.
For that reason, we consider that it is appropriate that the Public Advocate should be appointed as guardian. We note what the Public Advocate said about the provision of s 51 of the GA Act and the factors that are involved in assessing the best interests of a represented person. And we think that the Public Advocate is in the best position to observe those requirements.
So that is our decision. I want to repeat that whilst we make this decision on the basis of our perception of where the best interests for NRDC lie, that is not to be taken in any way as suggesting that those who put themselves forward as potential guardians are not extremely well motivated by a desire to achieve the same end. But we just have a concern that there might be a skewing of the decision making process by the overemphasis on a particular aspect of the considerations that need to be taken into account.
We think that it is appropriate that there be a relatively short appointment. It is still early days, and the position might be expected to stabilise over the next six months, and that is the period for which we think the appointment should be made. At that time there can be a review. It may well be that when the immediacy of decision making has passed, the situation might change and it might well be that either or both of the alternative applicants for appointment today might then be appropriate. But that is a matter to be assessed down the track.
We find that NRDC is incapable of looking after his own health and safety, that he is unable to make reasonable judgments in respect of matters relating to his person and that there is a need for the appointment of a limited guardian.

38 We consider the Public Advocate should be appointed limited guardian for the purposes of deciding where the represented person is to live, whether permanently or temporarily, deciding with whom the represented person is to live, and making treatment decisions for the represented person. They will be the orders of the Tribunal.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT